F.I. Rebello, J.
1. The Petitioner was initially employed as a clerk with the respondent. The petitioner was promoted as Tour Executive vide company's letter dated 8th May, 1982. His services were terminated on 29th September, 1988. On petitioner raising an Industrial Dispute a Reference was made to the Industrial Tribunal. Petitioner and the respondents appeared before the Industrial Tribunal and filed claim statement and written statement respectively. Evidence was produced both oral and documentary. Based on the evidence, the Industrial Court by its Award dated 21st January, 1998 held in answer to the preliminary issue raised by the respondents herein that the petitioner was not a workman under section 2(s) of the Industrial Disputes Act, 1947. The present petition is to impugn the said order.
2. At the hearing of the petition learned Counsel on behalf of the petitioner contends that the Order of the Industrial Tribunal is liable to be set aside as it discloses errors apparent on the face of the record in as much as the Industrial Tribunal has not correctly applied the tests, for determining whether the petitioner was a workman within the meaning of section 2(s) of the Industrial Disputes Act or fell within the exclusionary Clauses of section 2(s) of the Industrial Disputes Act. Counsel has relied on the evidence, both oral and documentary and Judgments cited in support of the contention.
On the other hand on behalf of the respondents, their learned Counsel has contended that merely because an employee does not fall under the exclusionary clauses by itself would not make the employee a workman. An employee to be a workman must fall within the predicate of section 2(s). In the instant case, the petitioner does not so fall or falls within the exclusionary clauses and considering that, the Industrial Tribunal was right in answering the Issue against the petitioner. Learned Counsel has also relied on the evidence oral and documentary as also various Judgments.
3. At the threshold, the contention on behalf of the respondents that a person to be a workman must not only fall outside the exclusionary clauses but must also satisfy the predicates of the definition has to be accepted. This is as per the law laid down by the Constitution Bench of the Apex Court after reviewing earlier Judgments of other Benches of the Apex Court. The law so declared would be reflected in the Judgment of the Apex Court in the case of H.R. Adyanthaya etc. etc. v. Sandoz (India) Ltd. etc. etc. 1994(II) C.L.R. 552, wherein the Apex Court has after reviewing its judgments, reiterated the law as under :---
'Hence the position in law as it obtains today is that a person to be a workman under the Industrial Disputes Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the said interpretation.'The question, however, is of burden of proof. Must a person or the Union at whose instance a reference is made, on the presumption that the employee is a workman has to discharge the burden of proving that he is a workman or is the burden on the person who disputes the same. In my opinion the burden must always be on the person who disputes the character of the person in the case of an industrial reference. In the instant case, it is the employer who has pleaded that the petitioner is not a workman. In that context the pleading of the petitioner have to be examined to understand exactly what the defence of the petitioner was. This would be clear from a reading of the averments in the written statement. In paragraph 3, the respondents had averred as under :---
'The Company states and submits that the employee does not fall within the meaning of 'workman' as contemplated under section 2(s) of the Industrial Disputes Act, 1947 in as much as his duties were primarily and substantially of a managerial/administrative nature. This Honorable Court may, therefore, be pleased to take up the issue whether the Employee is a 'workman' or not as a preliminary issue before going into the merits, if any, of the case.'
The plea of the respondents, therefore, was specific, that the petitioner was not a workman because he was engaged primarily and substantially to perform duties of a managerial/administrative nature. This is being referred too, as it was sought to be argued on behalf of the respondents that the petitioner must also establish that he satisfies the predicates of section 2(s), namely that he was employed in any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward. I am unable to accept the said contention. The burden of proof never shifts unless the party who so raises produces evidence in support of the Issue. By pleading a specific averment, the other side is informed what it has to meet. In the instant case, the petitioner was informed of the defence of the respondents before the Industrial Tribunal that he was not a workman because he fell within the exclusionary clause. The entire purpose of framing Issues is to enable parties to lead evidence. Issues arise from pleadings. If it was the case of the respondents herein that the petitioner also did not fall within the definition of section 2(s) and not merely the exclusionary clause, it ought to have so pleaded specifically. There is no such plea even generally. There was no such Issue and consequently it is not possible to entertain the contention raised by the respondents for the first time in a writ petition under Article 226 of the Constitution of India. This is more so as the petitioner was not aware and therefore could not have met the present arguments by leading evidence. I would however from the evidence on record point out that even this contention on merits has to be rejected.
4. With the above background, the plea of the petitioner being employed in a job involving managerial/administrative duties may be considered. What are that terms managerial or administrative will have to be considered to find out as to whether the Industrial Court has really applied the correct test in arriving at the conclusion that the petitioner was engaged in purely managerial/administrative capacity. The earliest judgment in which this Issue arose, and finds discussion is in the case of Mcleod and Co. v. Sixth Industrial Tribunal, West Bengal and others : AIR1958Cal273 . A learned Single Judge of the Calcutta High Court had occasion to consider the expression 'managerial', 'administrative' and 'supervisory'. The learned Judge while so considering observed as under:---
'Having regard to the categories of service indicated by the use of different words like 'supervisory', 'managerial', 'administratitve', it is I think necessary not to import the notions of one into the interpretation of the other. The words such as supervisory, managerial and administrative are advisedly loose expression with no rigid frontiers and I would discourage too much sublet in trying to precisely define where supervision ends, management begins or administration starts. Fort that would be theoretical and not practical. It has to be in my opinion broadly interpreted from a common sense point of view where tests will be simple both in theory and in their application. I should say interpreting this section on this point that (1) a supervisor need not be a manager or an administrator, (2) that a supervisor can be a workman so long as he does not exceed the wage limit of Rs. 500/- per month and (3) that a supervisor, irrespective of his salary, is not a workman who has to discharge functions mainly of managerial nature by reason of the duties attached to his office or of the powers vested in him.'
After having so said the learned Single Judge on the facts of that case observed that distribution of work may easily be the work of a manager or an administrator. In other words one of the tests to find out whether the person employed is in a managerial or administrative capacity was to ascertain if he was entrusted with the duty/responsibility of distribution of work. This Judgment came up for consideration before the Apex Court in the case of National Engineering Industries Ltd. v. Shri Kishan Bhageria and others : (1988)ILLJ363SC . The Apex Court has quoted the above passage whilst approving the Judgment of the learned Single Judge of the Calcutta High Court in the case of Mcleod and Co. (supra). While reiterating and approving the Judgment in the case of Mcleod and Co. (supra) the Apex Court noted that a managerial/administrative work, includes supervision but that does not mean that supervision is the only function of a manager or an administrator. Therefore, another test that could be considered is whether in the discharge of his managerial or administrative, duties did he perform any supervisory work.
In the case of Lloyds Bank Ltd. v. Panna Lal Gupta and others : (1961)ILLJ18SC , the Issue before the Apex Court was the application of Sastri Award. While considering the matter, the Apex Court observed as under :---
'Under this definition on many occasions the employers claimed that the workmen concerned were officers or members of the supervisory staff and as such did not fall under section 2(s), and workmen contended that they were doing merely clerical or mechanical work and did not fall in the class of officers or supervisors. Dealing with such disputes industrial courts generally considered the essence of the matter and did not attach undue importance to the designation of the employee or the name assigned to the class to which he belonged. It was always a matter of determining what the primary duties of an employee were, did he do clerical or manual work?; if the answer was in the affirmative he was a workman; were his duties of a supervisory nature?; if the answer was in the affirmative he was not a workman. In considering the latter aspect of the problem industrial adjudication generally took the view that the supervisor or officer should occupy a position of command or decision and should be authorised to act in certain matters within the limits of his authority without the sanction of the manager or other supervisors.'
Therefore, it is clear that for a person to be an officer (managerial/administrative) another test would be does he occupy a position to command or decide and is he authorised to act in certain matters within the limits of the authority given to him without the sanction of manager or other supervisor.
In Standard Vacuum Oil Company v. Commissioner of Labour and another : (1959)IILLJ771Mad , the Issue was not of manager but the definition involved persons employed in any establishment in a position of management. A learned Single Judge of the Madras High Court noticed the difference between the manager of an establishment and/or a person employed in the establishment as its manager. Considering that the learned Single Judge noted that it would not be right to say that a person is not in a position of management unless he has jurisdiction over any definite territory; managerial position can be attained also inside a department. The learned Single Judge thereafter proceeded to hold that it is not necessary that in order to be in a position of management the individual concerned should have absolute power in respect of any matter. Therefore, another indication would be, is he in command of a territory or department over which he exercises his managerial function.
In Mahendra Kumar Jain v. Divisional Manager, Central India Sales Corporation, Jabalpur and others, 1991(1) L.L.N. 743 the Labour Court had come to the conclusion that the petitioner therein was a Manager because in the official record he was shown as a manager and he never objected to that position. On the Attendance Register also he signed on behalf of the administration. Therefore, this would be an indication be considered, namely, what is the designation in the official record of the person and in the attendance register.
In Maheshwari (D.P.) v. Delhi Administration and others 1984(I) L.L.N. 1, on record it was found that the Appellate was occasionally deputed by the Managing Director to undertake some important mission. The Apex Court noted that the question to be asked is what were his main duties and not whether he was occasionally entrusted with other work. From this what emerges is merely because on occasions the workman is entrusted to take some important mission would not make him a manager. What has to be considered are his main duties.
In John Joseph Khokar v. B.S. Bhadange & others : 1998(2)BomCR174 , a learned Single Judge of this Court has observed as under :---
'A supervisory work may be contra-distinguished from Managerial and administrative work and, so also a supervisor from manager and administrative work.'
In Vinayak Baburao Shinde v. S.R. Shinde & others 1985 C.L.R. 318 Division Bench of this Court has observed as under :---
'In an industrial establishment normally there are three layers of work. One is the clerical or the manual work which is done by the workmen; the second is the supervisory work done by a supervisor and at a higher level is the work of a manager. The last mentioned officer is normally in a position to give orders and to see that the work is done. He has got powers to lay down the norms and to direct that the work shall be done in accordance with those norms. He has also naturally, the power to take disciplinary actions and in case where applications for leave are made it is within his power to sanction or reject those applications.'
In other words a manager must be in a position to give orders and see that the work is done. He must have powers to lay down the norms, to direct that the work be done in terms of those norms, power to take disciplinary action and where application for leave is made to sanction or reject those applications.
In Bombay Dyeing and . v. R.A. Bidoo & others : (1990)ILLJ98Bom , to distinguish the work between the supervisor and manager, it was observed as under :---
'It is not his function to bring about any innovation, it is not his function to take any managerial decision, but it is his duty to see that the persons over whom he is supposed to supervise do the work assigned to them according to the rules and regulations.'
Therefore, one of the tests would be that the Manager could in the performance of his duty innovate.
In Shrikant Vishnu Palwankar v. Presiding Officer of First Labour Court and others 1992(I) C.L.R. 184, the learned Single Judge has noted that exercise of promotional power is managerial.
In M/s. Inter Globe Air Transport v. Mrs. Leela Deshpande & another : 1994(2)BomCR596 , was a case of Regional Sales Manager working with a Travel Agency. There prima facie for the purpose of granting interim relief she was held to be a workman. That Judgment would be of no assistance as it was only a prima facie findings and not on merits.
5. In The New Lexicon by Ramnath Aiyer, 1987 Reprint edition, a Manager amongst other is defined as one who has the conduct or direction of anything; the person who manages. A Manager is a person who has the management of the whole affairs of the Company. In the New Lexicon Webster's Dictionary, a Manager is defined as someone who manages a company, department, institution etc. In the Concise Oxford Dictionary, 9th Edition, Manager amongst other defined as a person controlling or administering a business or part of a business; a person controlling the affairs, training, etc., a person regarded in terms of skill in household or financial or other management. In Words and Phrases, Vol. 3, relying on the case of Gibson v. Barton, 1875 L.R. to Q.B. 329, it is observed as under :---
'The Word manager, it is admitted on all hands, will not apply to a man who acts once or twice, but he must be a delegate having the control of all the affairs of the company.'
It is further observed relying on Re Johnson (B.) & Co. (Builders) Ltd. 14, 1955(2) All.E.R. 775, as under :---
'The phrase 'manager of the Company', prima facie, according to the ordinary meaning of the words, connotes a person holding whether de jure or de facto, a post in or with the company of a nature charging him with the duty of managing the affairs of the company for the company's benefit.'
A Further definition is found as under :---
'The term 'Manager' in himself implies certain control and authority. That he had no subordinates does not imply he had not certain control and authority.'
In Law Lexicon, 3rd Revised Edition, the definition in Mcleod and Co. v. Sixth Industrial Tribunal (supra) has been noted of Manager. In Stroud's Judicial Dictionary, Vol. 3, 'Manager' has been defined in ordinary talk, is a person who has the management of the whole affairs of the company; not an agent who is to do one thing; or a servant who is to obey orders and do another, but a manager who is entrusted with power to manage the whole of the affairs. In Words and Phrases, Vol. 26, it is observed as under :---
'The designation 'manager' implies general power and permits a reasonable inference that employee so designated was invested with general conduct and control of employer's business.'
6. From the above can it be said that the Industrial Tribunal has applied the tests, it ought to have applied, for the purpose of finding out whether the person was a manager. From the record it is found that the Industrial Tribunal has not taken into consideration essential documentary evidence. Letter dated 30th March, 1988 is an internal office communication to the petitioner by the Manager (Mrs. Gita R.C.). In the last para of the letter, it is stated as under :---
'In view of your continued and irregular absenteeism pattern, I am taking away transport register from you (the only independent responsibility given to encourage you) and henceforth Norman Hayde will be in charge of all transfers.'
From this letter of the Manager of the respondent, what is clear is that the only independent responsibility case on the petitioner was the transport register and that also was taken away from him by letter dated 30th March, 1988. His services were terminated as, is already set out on 29th September, 1988. In other words, at the time of his termination, he was not entrusted with any independent responsibility. The other documentary evidence which has not been considered may not be considered. We have the job description. Under the job description, the main purpose is set out as under :---
'Supervise the servicing of Clientele and ensures smooth operations of various Tours.'
Thereafter various duties are entrusted and under Item 11 it is set out other duties detailed by the manager from time to time. In his evidence he has explained the job function that is list of duties which is Exhibit C-16 in the evidence.
7. In so far as the oral evidence is concerned, on behalf of the respondent they had examined Maharukh Minoo Dosabhai, Manager - employee relations. In his cross examination he has admitted that he does not have any personal knowledge about the duties of the petitioner. In his examination in-chief he has also stated that in so far as the clerical and subordinate staff is concerned, there were settlements. The petitioner was not covered by the same. He has further deposed that he has acted as General Manager in place of Mrs. Choksi twice. He has further stated that Mr. Nunes is to ensure all duties through the staff. At least 10 to 11 employees are involved in these contingencies. All the 10 to 11 used to work under the Nunes for airport transport. In the course of cross-examination he has set out that there were two typists doing typing work of all the tour executives. In other words there were no employee directly under the control of the petitioner. At any rate it is not the contention of the respondents that the petitioner was entrusted with supervisory work. The next witness examined was Mr. Suresh Acharya who was working as Accountant with the respondents. According to this witness there were some stenos working with the petitioner and about 5/6 people assisting Mr. Nunes for carrying out his duties at the Airport. The stenos/Typists as found from the earlier evidence of respondents' witness were doing the work for not only petitioner but for other tour executives also. This witness has further clarified that the persons at the Airport were assisting the petitioner. It is not the case that the petitioner was in command of their work. He was receiving tourists with the purpose of lodging them in the Hotels where they were booked and it is in that context that the other workers were assisting him. In respect of signing vouchers, by the petitioner the witness in his cross-examination has clarified that this was during the period when the General Manager and the Assistant Manager were not in the office. He has also stated that Mrs. Bakshi was Assistant Manager and she was superior officer to Mr. Nunes.
8. From the evidence as considered above can it be said that the petitioner herein was engaged mainly in a managerial or administrative capacity. All that is seen is, that he was assigned the work to look after tourists arriving by Airways and their lodging. He was not exercising any managerial or administrative function as normally understood. He was not in-charge of the section. He had no authority to appoint any worker. All that he was doing was to receive the tourists, make out their bills, verify the bills as received. All these would be checking work of a clerk and not that of a manager or administrative officer. So considering, in my opinion, the Industrial Tribunal failed to apply the correct test in assessing as to whether the petitioner was doing the work of a managerial or administrative nature. Having misdirected itself on this aspect, the Industrial Court in arriving at the conclusion that the petitioner was doing the work of a managerial nature has given a finding based on no material and/or misreading of the evidence and/or non-consideration of evidence both oral and documentary. The findings of the Industrial Tribunal on that count, therefore, will have to be set aside. On the evidence before him the work done by the petitioner substantially was of a clerical nature. May be some of the duties may partake of managerial or administrative functions. But applying the tests as considered above, there can be no doubt that his main function and duties were purely clerical. Having said so, the order of the Industrial Tribunal to the extent that they upheld the Issue in favour of the petitioner has to be set aside. Once that is set aside, rule will have to be made absolute and the matter will have to be remanded to the Industrial Tribunal to further proceed in the matter.
9. Considering the above, rule made absolute in terms of prayer clause (a). The matter is remanded to the Industrial Tribunal to dispose of the Reference on merit according to law.
10. Considering that the petitioner's services were terminated on 29th September, 1988, nearly 12 years have passed, the ends of justice would be met if the Industrial Tribunal is directed to dispose of the reference not later than six months from today.
11. Issuance of Certified copy expedited.
12. P.A. to give ordinary copy of this order to the parties concerned.
13. All authorities concerned to act on the ordinary copy of this Order duly authenticated by the Associate of this Court.